Selective Service v. Minnesota Public Interest Research Group

By a vote of 6-2 the Court reversed the ruling of the lower court. Chief Justice Burger, writing for the Court, addressed the two issues under debate: the bill of attainder question and the Fifth Amendment question. On both counts, he found 12(f) fully constitutional, an opinion in which Justices O'Connor, Rehnquist, Stevens, and White joined, and with which Powell concurred in part while concurring in the judgment. Justices Brennan and Marshall dissented, and though both filed opinions, the latter's was much longer and more forceful.

A bill of attainder, the Chief Justice held, quoting Nixon v. Administrator of General Services, was "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." An example of a bill of attainder was a provision in the post-Civil War Constitution of Missouri, which prevented a person from entering a given profession unless he swore under oath that he had not "been a member of, or connected with, any order, society, or organization inimical to the government of the United States." The law, which was clearly intended to bar former supporters of the Confederate government from any role in public life, was struck down in Cummings v. Missouri (1867), and the Court struck down a similar law in Ex parte Garland (1867).

Section 12(f), on the other hand, did not single out those who failed to register, or make them ineligible based on that past conduct. It did not require registration within the time period established by the Presidential Proclamation, nor did it deem late registrants ineligible for aid. Rather, it "clearly gives non-registrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid." Nor did it inflict punishment, at least as that term was understood in the Bill of Attainder Clause in the Constitution. "It does not even deprive appellees of Title IV benefits permanently," the Chief Justice wrote, "since it leaves open perpetually the possibility of qualifying for aid." In passing 12(f), Congress had meant simply to "encourage registration" by those who were required to register and had not done so. It was not punitive in nature, but rather was intended to provide "a rational means to improve compliance with the registration requirements."

With regard to the Fifth Amendment privilege against compelled self-incrimination, Burger held that since a student who had not registered with the Selective Service would be bound to know that his application for financial aid would be denied, he was by no means under any "compulsion" to seek that aid. In other words, applying for aid was a choice he would have to make of his own free will, and if he did not want to sign up for the draft, then he would have to accept the consequences of that freely taken action--including the withholding of federal funds. As for the fact that a student who changed his mind and registered for the draft after all might be registering after the 30 day deadline, this too failed to constitute compulsory self-incrimination. The law did not require a student to inform officials at his school whether or not he had registered late, nor would lateness in registering disqualify a student from applying for financial aid. Because the appellees had not attempted to register, they "had no occasion to assert their Fifth Amendment privilege when asked to state their dates of birth . . . " Nor, finally, had the government threatened them with any consequences--short of not receiving a financial aid check--for their failure to comply. "Under these circumstances," Burger wrote, "appellees will not be heard to complain that 12(f) violates their Fifth Amendment rights by forcing them to acknowledge during the draft process they have avoided that they are registering late."

Justice Powell concurred in part and concurred in the judgment. In his view, the bill of attainder issue could be settled much more easily than the Court had disposed of it, simply by noting that 12(f) was not punitive legislation, a distinction established in Nixon v. Administrator of General Services. The Selective Service Act--and only that act--provided a punishment for the crime of failing to register for the draft. Section 12(f), by contrast, "authorizes no punishment in any normal or general acceptance of that familiar term." Using much the same logic as the Court, but applying it more directly, Powell was saying that withholding a privilege is not the same thing as conferring a punishment. Far from authorizing punitive actions, section 12(f) "provides a benefit at the expense of taxpayers generally for those who request and qualify for it." No one was compelled to receive it, nor was any minority group forbidden from receiving it. Since he found that 12(f) was not punitive in purpose or effect, Powell held that it was unnecessary to address the other questions the Court had reviewed in examining the bill of attainder issue.